November 19, 2023 Bridge Team
An opinion piece by Mathuri Thamilmaran, ICJ National Legal Advisor in Sri Lanka.
Two recent cases reported in the Sri Lankan media involving “psychiatric evaluations” based on sexual orientation garnered interest among lesbian, gay, bisexuals, transgender, intersex and queer (LGBTIQ) individuals and their allies. The facts of these cases highlight how some members of the Police and the judiciary still consider same-sex relationships an aberration requiring “psychiatric evaluation”. It is unfortunate that some law enforcement officials and members of the judiciary have recourse to such discriminatory practices in violation of internationally recognized standards.
The first case concerned an Indian woman who had arrived in Sri Lanka in June this year to meet her girlfriend who lived in Akkaraipattu, Ampara District. Her girlfriend’s father complained to the police, which subsequently arrested the couple for being in a same-sex relationship and produced them before the Akkaraipattu Magistrate court. The court ordered that the two women be sent for a “psychiatric evaluation”. According to media reports, after the “evaluation”, at a subsequent hearing before the same court, both women were released and the Indian woman was ordered to be sent back to India, while the Sri Lankan woman was sent to a safe house to ensure her safety from her family and others in her area of residence. Subsequently, media reports clarified that the court’s “psychiatric evaluation” order was only due to both women having threatened to commit suicide if separated. In practice though, the ordering of psychiatric evaluations is done routinely by Magistrates in cases involving individuals accused of engaging in same – sex sexual relationships.
In another reported case, a lesbian woman was forcibly confined at home by her family and taken to meet priests at religious shrines and forced to repeatedly denounce ‘homosexuality’ as a sin. She was also threatened by family members that she would be forced to attend counselling sessions, or that she would be sent to rehabilitation because “she was mentally ill”. When one of her friends complained to the police about the forced confinement, the woman and her friend were both threatened by the police. Upon the request of the lesbian woman’s family the police forced her to submit to a “psychiatric evaluation” to prove that “she was mentally ill”, and to handover her laptop to the police to find evidence of her same-sex relationship. Her family filed a case requesting that court order a “psychiatric evaluation” by a Judicial-Medical Officer (JMO) to prove that she was mentally ill, and an ‘interim’ Magistrate did make such order. Her lawyers challenged the order in the High Court and the Magistrate being informed of this found that there was no evidence to show that the woman was mentally ill and dismissed the case.
Sections 365 and 365A of Sri Lanka’s Penal Code of 1883 criminalize “carnal intercourse against the order of nature” and “acts of gross indecency”, respectively. Both sections have been used to criminalize consensual same-sex sexual relations, although the Penal Code does not provide a definition of the terms used by those sections. Those convicted of the ‘crime’ may face up to ten years’ imprisonment.
The Sri Lankan Constitution in Article 12 guarantees the right to equality before the law and equal protection of the law of all persons. It prohibits discrimination on grounds of race, religion, language, caste, sex, political opinion, and place of birth but does not prohibit discrimination on the grounds of sexual orientation, gender identity or gender expression (SOGIE). The Sri Lankan government has in the past indicated before various UN bodies that Article 12 included non-discrimination based on SOGIE, but as seen above, explicit provisions and application of the law seem to negate this argument.
The CEDAW (Convention on the Elimination of All Forms of Discrimination against Women) Committee in its March 2022 decision in the case brought by Rosanna Flamer-Caldera of EQUAL GROUND against Sri Lanka stated that criminalisation of same–sex relationships between women was a human rights violation. The Committee said that the Penal Code provisions criminalising same-sex relationships violate the right to non-discrimination provided in the Convention, and recommended decriminalisation of consensual same-sex sexual relationships.
At a recent workshop for Sri Lankan lawyers held by the International Commission of Jurists (ICJ), participants cited many examples similar to the two cases recounted above where judges automatically order “psychiatric” or “physical” “evaluations” as a first step in cases against those accused of being in a same-sex relationship. This is an erroneous act in contravention of human rights protections available to all persons, including lesbian, gay and bisexual individuals. Such orders cause much mental harm to those subjected to such evaluations.
In August 2021, however, the Sri Lanka College of Psychiatrists issued a statement denouncing the view that homosexuality was a mental illness as a myth not in keeping with evidence-based science and calling on the authorities to abolish section 365 of the Penal Code. This echoes the statement by the Indian Psychiatric Society in 2018, which stated that same-sex sexuality was “a normal variant of human sexuality much like heterosexuality and bisexuality” and that there is no scientific evidence to prove that sexual orientation can be altered by treatment, but, instead, that such treatment would lead to low self–esteem and stigmatization of the concerned individual. The statement drew from the position of the American Psychiatric Association and The International Classification of Diseases of the World Health Organization both of which removed homosexuality from the list of psychiatric disorders in 1973 and 1992, respectively.
The statement by the Indian Psychiatric Society called for decriminalization of homosexuality and was cited approvingly by the Indian Supreme Court in the 2018 case that effectively decriminalized consensual same-sex relationships in India (Navtej Singh Johar & Ors. v. Union of India). In that case, the Supreme Court of India also noted that lesbians and gay men would enjoy better mental health feeling positive about their sexual orientation through “coming out”, and that being able to disclose their sexual orientation to others increased the availability of social support, which was crucial to mental health.
Non-consensual corrective treatment, including “mental/psychiatric evaluations” for LGBTIQ individuals, violates their human rights, such as their right to health guaranteed by Article 12 of the International Covenant on Economic Social and Cultural Rights (ICESCR), and also constitutes a form of torture or other cruel, inhuman or degrading treatment or punishment in violation of Article 7 of the International Covenant on Civil and Political Rights (ICCPR) and
Article 11 of the Sri Lankan Constitution. Further, the Human Rights Committee has interpreted Article 9 of the ICCPR, which states that “[e]veryone has the right to liberty and security of person”, to include “freedom from injury to the body and the mind, or bodily and mental integrity”. Sri Lanka is a State Party to both Covenants. The Yogyakarta Principles (2007) which are a set of principles that apply international human rights law to sexual orientation and gender identity categorically state in Principle 18 that sexual orientation and gender identity are not medical conditions and therefore cannot be treated, cured, or suppressed. Principle 32 (introduced by YP+10 in 2017) likewise affirms the right to bodily and mental integrity, autonomy, and self -determination irrespective of an individual’s sexual orientation or gender identity.
“Psychiatric evaluations” because of one’s sexual orientation whether at the behest of family members, healthcare professionals or authorities, including the judiciary are unnecessary. In court, such evaluations are ordered entirely at the judge’s discretion, as there is no law or policy requiring them. Such unnecessary “psychiatric evaluations” must be stopped as they are in violation of human rights and inconsistent with international law.